The division bench of Justices N.V. Ramana, J.K. Maheshwari, and Hima Kohli of the supreme court of India in the case of Pushpendra Kumar Sinha vs state of Jharkhand held that it is a well settled law that at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
BRIEF FACTS
The factual matrix of the case is that the RPCL was awarded with the contract of work under APDRP after that, because of the delay in the execution of the work and to resolve that issue, the chairman of JSEB organized a meeting where in the orally directed the chief engineer to place the agenda for the next board of meeting for the termination of the contract. Thereafter, in the meeting itself JSEB and RCPL mutually agreed that full effort to complete the project shall be made by RPCL. On the retirement of the superintending engineer, RPCL sent letters requesting him for further extension of time. RCPL invoked the arbitration clause in the terms of contract and requested JSEB for appointment of an arbitrator. The said letter was placed it before the Chairman on the issue relating to appointment of an arbitrator and waiver of penalty, as advised by learned Advocate General (“AG”) of State of Jharkhand in similarly placed transmission lines projects.
Thereafter the committee was formed which includes member from finance technical and law which suggested the names of arbitrator. Out of the three names as suggested, Mr. Ramayan Pandey was appointed as the arbitrator by consent. Arbitration proceedings commenced and an interim award was passed in favour of RPCL. The aforesaid award was put before the chairman regarding for seeking an opinion of the enforceability of award from the AG. AG put forward his opinion and decided to implement the interim award. It is important to note that JSEB was experiencing financial difficulties as the award was being implemented. However, JSEB chose to conduct an internal investigation on how to handle the work contract awarded to RPCL. On the basis of the said enquiry, allegations of malpractice and financial irregularity were levelled against the Appellant and some others. The Secretary, JSEB vide letter made a request to the Director General of Vigilance Bureau ("DGP") to file a FIR for violations of Sections 109, 409, 420, 467, 471, 477A, and 120B of the IPC as well as Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the PC Act against the appellant and others. Thereafter the high court also agreed with the decision made by the learned single judge.
The learned counsel appearing on behalf of the appellant contended that the appellant was not having any power or authority regarding decision making and for implementing arbitral award. Further there was no concealment of the instruction of the previous Chairman pertaining to termination of the contract. It was also argued that the Appellant was founded on information and records from the APDRP file that his controlling officer had authorised him to see and the reference was made to arbitration and till further directions for making the payment for the interim award passed against JSEB, in favour of the RPCL. Also he was not the part of the decision making process or of taking further step to implement the project. Further no nexus established between the appellant and the RPCL. At last, it was contended that the While granting bail to the Appellant on merits, the High Court stated unequivocally that the Appellant had brought the matter before higher authorities for instructions before proceeding further and did not act unilaterally; (ix) with the exception of the Director of Finance, none of the decision-making authorities, namely members of the Central Purchase Committee and the Board of JSEB, have been charged in this case.
The learned counsel appearing for the state has contended that the Chairman already instructed the CE to place the agenda for the termination of contract before the RPCL. After that the agenda was proposed and the member technical team put up recording “please discuss.”
COURT’S OBSERVATION
The hon'ble court stated that we fail to understand as to why the same person, who had approved the implementation of award as a member of the Board, had later as Vigilance Commissioner, recommended initiation of prosecution against the Appellant, who had merely prepared the agenda for appointment of an arbitrator and had nothing to do with the approval of the award and payment of money. In view of the aforesaid, if at all any culpability had to be assigned, it should have been assigned after examining the role of senior authorities who were involved in the decision-making process. Astonishingly, most of the senior officials,who approved various decisions regarding extension of time, appointment of arbitrator and implementation of arbitration award and consequent payment to RPCL have not been arrayed as accused. In our considered view, primafacie there is nothing which affixes culpability or constitutes commission of offence including mensrea on the part of the Appellant. It seems that an attempt has been made to implicate the Appellant for the decisions in which primafacie, he did not have any role to play, nor do his acts establish any culpability regarding the alleged offences.
It was further stated that the it cannot be inferred that the Appellant led the AG and the JSEB to implement the award with fraudulent or dishonest intention to cause loss to JSEB and benefit to RPCL. It is a well settled law that at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Indeed, the Court has limited scope of enquiry and has to see whether any primafacie case against the accused is made out or not. At the same time, the Court is also not expected to mirror the prosecution story, but to consider the broad probabilities of the case, weight of primafacie evidence, documents produced and any basic infirmities etc. To support this the hon'ble court relied upon the judgement titled Union of India Vs. Prafulla Kumar Samal. At last, the court set aside the decision of the high court and held that no prima facie case made out against the appellant.
CASE NAME- Pushpendra Kumar Sinha vs state of Jharkhand
CITATION- CRIMINAL APPEAL NO.1333 OF 2022
DATED- 24.08.22
CORUM- Justices N.V. Ramana, J.K. Maheshwari, and Hima Kohli
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